Final Order 1

Order Details: Other
Pdf Text: 30.09.2019
SU 3245/18
NM 474/19
Ex 4
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. R.R. Chaudhari for Plaintiff present and tendered original Notice of Motion
No.474/2019 t.o.r.
Adv.Ramesh Kambale for defendant no 1 present.
Ex 4 He filed vakalatnama t.o.r
He also filed reply to NM 474/19 t.o.r
Defendant no 1 tendered draft NM. t.o.r.
Copy of both given to other side.
ORDER PASSED BELOW DRAFT NOTICE OF MOTION
Perused draft notice of motion, affidavit in support of it and reply of
plaintiff. Heard respective counsel for parties.
Draft notice of motion is taken out by defendant No.1 for condoning delay
caused in filing written statement and to take the same on record.
It is contended that matter was referred for mediation considering that
plaintiff and defendant No.1 are husband and wife and they have decided to
settle matter by filing consent terms. Matter was adjourned for verification of
parties in relation to consent terms but on fixed date plaintiff does not accept
consent term and that, matter was adjourned to 16.08.2019 for direction. In
above circumstances defendant No.1 submit that she wants to file written
statement and contest the matter and accordingly, prayed in above terms.
Plaintiff filed reply and opposed notice of motion on the count that delay
caused is deliberate.
It is a settled law that Order VIII Rule 1 of CPC is not mandatory and in
specific circumstances written statement can be accepted with reasons. It is also
held that in an adversarial system, no party should be denied an opportunity in
participation of the justice dispensation system (Salem Bar Association V/s
Union of India 2003 AIR SCC 189 and Zolba V/s Keshav 2008 AIR SCC
2099). In view of this legal position, now, I consider present notice of motion.
It is apparent that matter was referred for mediation on 17.12.2018 and on
27.03.2019 mediation report was received along with consent terms and matter
was adjourned and posted for verification of consent terms. On 08.07.2019,
plaintiff made statement that he does not accept terms of settlement. Thus, time
was consumed in settlement of the matter and because of which defendant No.1
who is wife of plaintiff could not file her written statement. In above set of facts
reason assigned by defendant No.1 is sufficient to condone delay caused in filing
written statement. More so, in the interest of justice and fair trial, I find it unjust
to deprive defendant No.1 an opportunity to content the suit on merits. Hence,
pass following order.
ORDER
1. Draft Notice of Motion is allowed and made absolute in terms of prayer clause
(a).
2. Defendant No.1 is directed to file written statement on record within period
of one week from the date of this order.
3. Draft notice of motion be registered for statistical purpose.
4. Accordingly, draft notice of motion is disposed off.
Adjd. for direction to 18.10.2019
Judge
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